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ANDREASRAHMATIAN*
The Musical Work in Copyright Law
Music is a special art form and a special object for copyright protection. In contrast to other, more static, forms of
art, such as most of the visual arts, music is fashioned time and therefore constitutes change and movement; it also
exists only in its performance. This article shows how copyright constructs a normative device, the ‘musical work’, to
be able to protect this fleeting and transient art form. The article also discusses how music is analysed to ascertain
which of its elements obtain copyright protection against infringement, and whether a ‘hearing test’ is an adequate
method for establishing infringement.
I Music and musical work: Legal definitions
‘Works of copyright’ are not factual descriptions adopted
by the law, but normative legal creations which particu-
larly resemble works of art (in a broad sense) as they are
generally understood in the real world. An artistic work,
according to law, includes paintings, drawings or sculp-
tures in the ordinary sense, independent of the specic
meaning in the law. However, graphs, charts, diagrams,
plans or certain photographs that would not commonly
be regarded as artistic in nature are also covered by the
category of ‘artistic work’.1 The large category of liter-
ary work comprises some prominent examples of arti-
cial legal categories, such as the computer program,
which is supposedly only another instance of a literary
work alongside novels or poems.2 Yet the musical work
is something special, a fact which lawyers do not seem to
give much consideration. What is protected by copyright
is strictly speaking not music, but an articial legal con-
struct that is normatively dened as a true representation
of the music. The protection mechanism is a legal cre-
ation of a representation of what is commonly regarded
as music, and this representation subsequently becomes
the reference point for copyright protection as if it were
the music itself.
In this article it will not be argued that copyright does
not manage to protect music adequately because of its
particular nature. It will rather be shown that the legal cre-
ation of the ‘musical work’, and the assumptions behind
this creation, enable acceptable protection in most cases:
it is worth looking into this construct that lawyers employ
without much awareness of its nature. Admittedly, some
legal practitioners may dismiss as irrelevant more theoret-
ical discussions about why and how something operates
if it works reasonably well, but such an approach is too
unsatisfactory from an academic perspective. Problems,
arguably irresolvable ones, nevertheless arise when less
traditional forms of music are concerned, such as serial
music and aleatoric music. However, since the most com-
mercially relevant forms of music are in the area of pop
music (broadly understood), legal actions are brought
almost exclusively in that sector. As pop music, despite its
generally vanguard attitude, usually operates with more
traditional techniques of the musical craft than modern
classical music, problems of copyright protection which
would be raised by modern classical music do not come
before the courts. There are court decisions in relation to
musical sampling,3 which has been an innovative form of
music-making (initially particularly in rap and hip-hop),
but that issue is strictly speaking not one of the ‘musical
work’ and its legal construction in copyright law, because
sampling cases are infringement and fair use cases which
presuppose the protected pre-existing musical work.
It is mostly pop music that has an important commer-
cial value, and in copyright countries the music entertain-
ment industry is stronger and litigation with regard to
music more common than in droit d’auteur countries of
the European continent. This is a reason why the pres-
ent article will focus signicantly more on copyright sys-
tems, although droit d’auteur systems will frequently be
referred to where relevant.
Before the specic protection method of ‘musical
work’ is considered in more detail, it is worth look-
ing at some denitions of ‘musical works’ in several
copyright and author’s rights laws as a starting point.
* Prof. Dr., University of Glasgow, School of Law, United Kingdom.
1 eg USA: Copyright Act 1976, 17 U.S.C. § 101: ‘Pictorial, graphic, and
sculptural works’. UK: CDPA 1988, s. 4(1) and (2). Germany: Author’s
Rights Act 1965, § 2(1)(4). France: Code de la propriété intellectuelle
1992, arts L112-2, 7°-10° and 12°.
2 In the USA, the copyright denition of literary works covers soft-
ware, US Copyright Act 1976, 17 U.S.C. § 101. Under the EU Directive
2009/24/EC of the European Parliament and of the Council of 23 April
2009 on the legal protection of computer programs, literary works
include computer programs. French authors in particular emphasise the
articial nature of computer programs’ classication as literary works in
French law, see eg Michel Vivant and Jean-Michel Bruguière, Droit d’au-
teur et droits voisins (2nd edn, Dalloz 2013) 256, although the Pachot
case (1986) with its denition of originality as ‘marque de l’apport intel-
lectuel de l’auteur’ paved the way for author’s rights protection of com-
puter programs before the corresponding EU (or EC) Directive.
3 Case C-476/17 Pelham ECLI:EU:C:2019:624, in this regard see below
under IV.2.
GRUR International, 73(1), 2024, 18–33
https://doi.org/10.1093/grurint/ikad105
Advance Access Publication Date: 19 October 2023
Article
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The Musical Work in Copyright Law 19
When considering the copyright systems rst, in the
US, the Copyright Act 1976 refers to ‘musical works’
as one category of works which are the subject-mat-
ter of copyright, whereby any accompanying words are
included in the musical work-category.4 Otherwise the
‘musical work’ is not dened further. Obviously, from a
musician’s or composer’s perspective, ‘music’ does not
include accompanying words, so factual ‘music’ and
normative ‘musical work’ overlap but do not coincide.5
In the UK, the musical work is normatively separated
from the literary work of the text (lyrics), a dramatic
action or dance. Under the Copyright, Designs and
Patents Act 1988 (CDPA 1988), a ‘musical work means
a work consisting of music, exclusive of any words or
action intended to be sung, spoken or performed with
the music.’6 There are no further indications as to what
‘music’ actually is, of which the musical work sup-
posedly consists. Although, in contrast to the US, the
non-musical category of text/poetry is excluded, the
‘musical work’ category of the UK CDPA still does not
coincide with ‘music’ in a musician’s understanding, as
we shall see.7 The Irish approach is that of the British
one.8
The statutes of the author’s rights systems do not give
much guidance about musical works either. In France,
‘musical compositions with or without words’ are pro-
tected, as well as dramatic-musical works (typically operas
or musicals),9 without any further explanation about the
nature of the musical work. The comprehensive under-
standing of the musical work that can include words or
action is reminiscent of the United States. The Italian de-
nition is almost identical to the French one.10 The Dutch
regulatory approach is also similar.11 Polish law restricts
the musical work to music with or without words.12 The
German Author’s Rights Act (Urheberrechtsgesetz) lists
‘works of music’ as one category of protected works
without further detail.13 The same applies to Austria
(‘Tonkunst’, literally ‘musical art’).14
In Belgium, the musical work is subsumed in the gen-
eral category of ‘literary and artistic works’.15 In Sweden,
musical and works of scenography are in one category.16
This is interesting, because one would probably expect
literary, artistic, scenographic and musical works to fall
into separate groups: one would think that scenography,
for example, is closer to the artistic work, where the fac-
tor of time is less relevant than in music, and yet sce-
nography is obviously connected to performance and the
dramatic work or the theatre play, and therefore the time
element matters, similar to music. It will be explained
later that the ‘musical work’ has nevertheless special
features which distinguish it from the artistic work, the
dramatic work, the lm and arguably even the choreo-
graphic work.17 The legal technique of categorisation
is, however, not as relevant as it seems, because in droit
d’auteur countries the categories of work are normally
a demonstrative, not conclusive, list (Austria is a theo-
retical exception),18 so that the work in question need
not t into a specic category to obtain protection. The
CJEU echoed that principle.19 In the UK, however, there
is theoretically a xed list of copyright work categories
(‘category approach’ or ‘pigeonhole approach’),20 but
generally with insignicant practical differences to the
situation in droit d’auteur countries.
Certain features become apparent from the denitions
of ‘musical work’ of both the copyright and the author’s
rights worlds. The normativity of the term ‘musical
work’, departing from common use, becomes particu-
larly obvious in cases where, depending on the individual
jurisdiction, the denition of ‘musical work’ can comprise
text or action in connection with the music: a composer
or musician would not normally regard lyrics, acting or
dance as parts of the music in an ordinary or artistic sense
– more precisely a Western composer, because, for exam-
ple, in the many forms of African traditional and modern
music the distinction between poetry, music and dance
is much more blurred than in the European traditions.21
Furthermore, there is no legal denition of music. The
copyright countries sometimes offer an exclusive deni-
tion (‘music without …’ or ‘exclusive of …’) but leave
the question of what constitutes music to statutory inter-
pretation. Both in copyright and in author’s rights coun-
tries, the denition of ‘musical work’ is referred to judicial
practice.22
It is commendable that copyright statutes across the
world refrain from a denition. Music is generally more
frequently a work of art in the usual sense. There are
rarely purely utilitarian works in music, like compila-
tions, diagrams or charts that are included in the literary
or artistic work categories, so that a work of music typ-
ically contains an element of artistic novelty or original-
ity – in this context not necessarily to be understood in
the technical legal meaning of these terms. It would be
counterproductive if a legislator tried to pre-empt artistic
7 See below under III.
8 Ireland, Copyright and Related Rights Act 2000, s 17(2)(a).
9 France, Code de la propriété intellectuelle 1992, art L112-2, 3° and 5.
See also Vivant and Bruguière (n 2) 164.
10 Italy, Author’s Rights Act 1941, art 2(2).
11 Netherlands, Author’s Rights Act 1912, art 10, ss 1, 2° and 5°.
12 Poland, Author’s Rights Act 1994, art 1(2)(7).
13 Germany, Author’s Rights Act 1965, § 2(1)(2).
14 Austria, Author’s Rights Act 1936, § 1(1).
15 Belgium, Author’s Rights Act 1994, art 1(1).
16 Sweden, Author’s Rights Act 1960, s 1(3).
17 See below under II.2.
18 Clemens Appl, ‘Urheberrecht’ in Andreas Wiebe (ed), Wettbewerbs-
und Immaterialgüterrecht (Facultas Verlag 2022) 209.
19 Case C-393/09 Bezpečnostní softwarová asociace v Svaz soft-
warové ochrany v Ministerstvo kultury ECLI:EU:C:2010:816, [2011]
FSR 18, paras 45-46; Case C-310/17 Levola Hengelo v. Smilde Foods
ECLI:EU:C:2018:899, paras 36-40.
20 See William R Cornish, David Llewelyn and Tanja Aplin, Intellectual
Property: Patents, Copyright, Trade Marks and Allied Rights (Sweet and
Maxwell 2019) 439-40.
21 See eg Gerhard Kubik, Zum Verstehen afrikanischer Musik:
Ausgewählte Aufsätze (Reclam 1988) 61-64, 67.
22 On the musical work eg in Germany, see Eva-Marie König, Der
Werkbegriff in Europa (Mohr Siebeck 2015) 292-94. Usually, musical
works are considered as consisting of melody, harmony and rhythm (on
these elements of music see below under IV.1.), see eg for France, Vivant
and Bruguière (n 2) 167, for Italy, Luigi Carlo Ubertazzi, Commentario
breve alle leggi su proprietà intellettuale e concorrenza (Cedam, Wolters
Kluwer 2019) 1648, cols. 1 and 2.
4 US Copyright Act 1976, 17 U.S.C. § 102(a)(2).
5 The same applies to the category of dramatic works, which includes
any accompanying music, see US Copyright Act 1976, 17 U.S.C. § 102(a)
(3).
6 UK, CDPA 1988, s 3(1).
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20 Andreas Rahmatian
novelty and development or freeze artistic freedom and
innovation with a certain denition. ‘Music’ is something
to be determined by the courts, who need to rely on the
understanding of the music world for their assessment.
However, such an expert opinion by a musician or musi-
cologist, as opposed to a layperson’s hearing experience,
can cause problems.23
Yet, even if we ascertain with sufcient clarity for
the purpose of the law what music is, that denition of
‘music’ does not provide a denition of ‘musical work’.
‘Music’ in reality and ‘musical work’ in law are not the
same. The reason for that lies in the specic nature of the
art form of music itself.
II Making music ascertainable for protection
1. The ascertainable object of the property
right
The major problem for the copyright protection mecha-
nism is that music is fashioned time. But the copyright pro-
tection system is based on property rights which ultimately
presuppose static space. Copyright (in the following, this
term encompasses author’s rights) is a property right,
either formally, such as in the US,24 UK25 or France,26 or
functionally-economically (called ‘Immaterialgüterrecht’,
‘intangible goods right’), as in Germany27 and Austria.28
Property rights in general are characterised by a xed list
or numerus clausus (at least in fact, even if there is no
codied system),29 so that contracting parties cannot cre-
ate their own property rights but have to resort to a cat-
alogue of types of property rights that the law provides.
In this way, third parties who are bound by this right erga
omnes can identify it: in intellectual property, these are
particularly patents, trade marks, copyright and designs,
created and dened by statute. Furthermore, to qualify
as a property right, it must have a certain permanence or
stability. The famous dictum in English law in National
Provincial Bank v Ainsworth30 by Lord Wilberforce gives
good heuristic guidance:31
‘Before a right or an interest can be admitted into the
category of property, or of a right affecting property, it
must be denable, identiable by third parties, capa-
ble in its nature of assumption by third parties, and
have some degree of permanence or stability.’
This case was in relation to the assessment of the nature of
a right in land law, thus referring to tangible property. With
intangible property, such as copyright, the same idea applies,
but the practical implementation is more difcult. A copy-
right protects (and is a property right in), say, a painting, that
is, the specic realisation of an artistic work, as it materia-
lises in paint on a canvas. That painted canvas is subject to
rules on tangible and moveable property separately, but the
copyright is denoted indirectly by that as well, although the
copyright is a separate property right and typically in sepa-
rate ownership, with separate transferability of that owner-
ship.32 The copyright benets from the static nature of this
reier: the painting is a stable, permanent physical object,
perceivable by anyone’s own unaided senses. But music?
What can serve as a (physical) permanent reier that denotes
the copyright/property right in a piece of music? And does
such a permanent reier permit the music to be perceived by
one’s own unaided senses?
2. Music in contrast to other forms of art
As already said, music is fashioned time, or if one is
inclined to make an aesthetic statement, embellished
time. Music is a temporal structure, that is, an intrinsi-
cally time-bound process, not a structure in time, that is,
merely subjected to time, like a typical artistic or archi-
tectural work. That means music is not static at all but
moves and changes all the time – if time were to stop,
music would cease to exist. One can see music as a phe-
notypical expression of time (or, following Husserl, an
example of the inner awareness of time33), like the appar-
ent cyclical movement of the xed stars, a ticking clock,
the growing of a plant and other changes.34 In such a case,
the reference point for a property right becomes difcult
to establish. A work of architecture is static and does not
change. Music is a questionable reference point for such
a permanent right: after all, third parties bound by the
copyright property right erga omnes need to be able to
ascertain wherein the right lies and where its limits are.
This is a problem with all, particularly intangible, prop-
erty rights: for example, a trade mark right must be clearly
ascertainable for third parties, which can become difcult
for trade marks that are not graphically represented (such
as olfactory marks),35 although the express requirement
of graphical representation has recently been dropped
in EU trade mark law.36 An artistic work represents its
appearance and features, and thereby its limits of protec-
tion, visually and graphically. A painting which appears
visually sufciently different from a pre-existing painting
will not infringe copyright.37 The similar or different fea-
tures in question are static and immediately ascertainable.
23 See below under IV.2.
24 eg US: Davis v Blige 505 F.3d 90, at 98-99 (2nd Cir. 2007). Copyright
is property at least for most purposes, see recently Univ. of Hous. Sys. v
Jim Olive Photography 580 S.W. 3d 360, at 364, 369, 375 (Tex. App.
2019).
25 UK CDPA 1988, s 1(1).
26 France, Code de la propriété intellectuelle, art L111-1.
27 Manfred Rehbinder, Urheberrecht (16th edn, CH Beck 2010) 2, 15.
28 Michel M Walter, Österreichisches Urheberrecht: Handbuch, 1. Teil
(Verlag Medien und Recht 2008) 16.
29 Nestor M Davidson, ‘Standardization and Pluralism in Property Law’
(2008) 61 Vanderbilt L. Rev. 1597-663 (1600).
30 [1965] AC 1175.
31 ibid 1247-248.
32 This transferability is included in Lord Wilberforce’s reference to
‘capable in its nature of assumption by third parties’ as a requirement
for being classied as a property right in National Provincial Bank v
Ainsworth [1965] AC 1248. Copyright is transferable (assignable) in
most jurisdictions, but not in Germany, see § 29(1) Author’s Rights Act
1965, and Austria, see § 23 (3) Author’s Rights Act 1936.
33 Edmund Husserl, Vorlesungen zur Phänomenologie des inneren
Zeitbewußtseins (Martin Heidegger (ed)), (Max Niemeyer Verlag 2000)
6, 25-27.
34 More discussion about music as a temporal structure in Andreas
Rahmatian, ‘The elements of music relevant for copyright protection’ in
Andreas Rahmatian (ed), Concepts of Music and Copyright: How Music
Perceives Itself and How Copyright Perceives Music (Edward Elgar
2015) 79-81, with further references.
35 Case C-273/00 Sieckmann ECLI:EU:C:2002:748, paras 48, 50-55.
36 Directive (EU) 2015/2436 of the European Parliament and of the
Council of 16 December 2015 to approximate the laws of the Member
States relating to trade marks, art 3(b).
37 Compare Sid Marty Krofft Tele. v McDonald’s Corp 562 F. 2d 1157,
at 1164 (9th Cir. 1977).
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The Musical Work in Copyright Law 21
However, the visual arts have great problems with
depicting and capturing movement and change. They
may show a (dramatic) moment frozen in time, particu-
larly in the Romantic period, such as some paintings by J.
M. W. Turner (1775-1851) that depict storm and boats in
a rough sea. In the rst third of the twentieth century, the
cubist, futurist and surrealist movements experimented
with the phenomenon of movement, change and uid-
ity in painting and sculpture, such as works by Marcel
Duchamp (1887-1968), ‘Nu descendant un escalier n° 2’
(1912), Umberto Boccioni (1882-1916), ‘Forme uniche
della continuità nello spazio’ (1913),38 or René Magritte
(1898-1967), ‘La Durée poignardée’ (‘Time Transxed’,
actually: ‘Time Stabbed with a Dagger’) (1938). But all
these experiments only emphasise the attempt at going
beyond the limits of the art form and rely on the spec-
tators to mentally complete the movement which the
artwork hints at. An exception was perhaps František
Kupka (1871-1957), who wanted to express a gen-
uine visualisation of the time experience in the three
dimensions of visual art.39 An illusion of movement, for
example through Eadweard Muybridge’s (1830-1904)
‘Zoopraxiscope’ discs of the 1880s and 1890s, or the
moving images created by the swiftly passing frames
of a lm (in the old days before lm recording became
taped and digitised), does not change that essentially
static nature of the elements of the artwork that create
the illusion.
The contrast between the static work of the visual arts
and the time-dependent ow of the work of music is obvi-
ous.40 A painting, a sculpture or a work of architecture is
static, space-bound, visual. But what about forms of art
where time evidently plays an important role: the dramatic
work (e.g. a theatre play), a recital of poetry or a speech
(literary works), happenings, events and performances as
forms of visual art, video art, the lm (cinematographic
art), dance and choreography? Like music, they contain
change based on the ow of time. What is (or represents?)
here the property object to which copyright attaches? Or
could one also say that the nature of the art form is not
really relevant for the protection mechanism of copy-
right, because copyright protects the abstract intellectual
creation as it may manifest itself in the real would but
not that manifestation as such, so that it is not important
whether the object of protection is static or time-bound,
or even fashioned time, as with music?
As to the last point, copyright does protect intellectual
creations, but their manifestation, being perceivable by
the human senses, is a necessary prerequisite for protec-
tion and the reference point for the right. This manifes-
tation does not have to be in the sense of xation, as the
copyright systems require, but it must be an emergence in
the physical world.41 How this manifestation materialises
reveals the nature of the art form and its potential differ-
ences to music. With paintings, sculptures and works of
architecture, the manifestation is invariably also xation
in the copyright sense.42 Dramatic works (in copyright
laws where this separate category exists)43 are manifested
through writing and thus resemble literary works (which
can also be recited). It is a philosophical question what the
text is: the actual work itself (similar to the situation with
artistic works), or (like in music) an instruction for a perfor-
mance. The latter is certainly more relevant to a dramatic
work than to a novel, for example. However, in relation to
the dramatic work, and even more so with regard to the
literary work, the text represents (or: is) the work itself,
and the scope of the performance is comparatively narrow,
determined by the text as its borders. One could surmise
that the written text is not a very accurate record for the
rendering of the literary or dramatic work. However, the
text of the language is far more precise than the music nota-
tion. The written text of a poem or a play gives a narrow
gauge for a performance, while musical notation is much
more imprecise as a basis for the performance. We will see
that the score is not the music itself.44
Where performance plays a much more dominant role
is in dance and dance choreography. The concept of dance
tends to resist xation45 and shares with music that it can
exist perfectly well without recording. It also seems to be
that copyright is not at the forefront of dancers’ concerns;
they are more interested in the creative process than in the
protected product.46 If a choreographer is considered as
author and copyright owner, it can become complicated
to ascertain wherein the protection actually lies. That con-
cerns methods, styles, techniques and traditions as well
as the personal (choreographer’s and possibly dancer’s)
input and raises questions of originality and co-author-
ship.47 Case law is scarce.48 Countries which have cho-
reographic works as a separate protected category49 are
38 Linda Dalrymple Henderson, The Fourth Dimension and Non-
Euclidean Geometry in Modern Art (2nd revised edn, MIT Press 2013)
221-231 with the different understanding of time by these two artists.
39 ibid 218.
40 The artistic movement of Fluxus seems to have broken down this
barrier successfully, but by deliberately discarding the individual art-
work and the art categories, see Natilee Harren, Fluxus Forms: Scores,
Multiples, and the Eternal Network (University of Chicago Press 2020)
18-21, 27-29: ‘Fluxus was […] “born out of the spirit of music”’ (at 28).
See also briey below under II.5.
41 See below under II.3., with references.
42 Therefore the UK CDPA 1988, s 3(2), does not state the requirement
of recording (xation) for artistic works (in contrast to literary, dramatic,
musical works), because without such a xation (stroke of the brush,
carving out of a stone, etc.) the work would not come into existence in
the rst place.
43 In the UK CDPA 1988, s 3(1). In Germany, for example, the dra-
matic work is a subcategory of the literary work (Sprachwerk), see
Ulrich Loewenheim, ‘§ 2 para 115’ in Gerhard Schricker and Ulrich
Loewenheim, Urheberrecht. Kommentar (5th edn, CH Beck 2017) 162.
44 See below under III.
45 Mathilde Pavis, Charlotte Waelde and Sarah Whatley, ‘Who can
Prot from Dance? An Exploration of Copyright Ownership’ (2017) 35
Dance Research 96-110 (100).
46 ibid 101.
47 Pavis, Waelde and Whatley (n 45) 104. An example of the applica-
tion of the distinction between unprotectable idea (methods, styles, tech-
niques, etc.) and protectable expression in effect for choreographic works
in Germany by the LG München I, [1979] GRUR 852, at 853 – Godspell.
On the idea-expression separation with regard to music, see below under
IV.1.
48 See, for example, in the USA, Martha Graham School and Dance
Foundation Inc. v Martha Graham Center of Contemporary Dance Inc.
466 F. 3d 97 (2006). In the UK, see the old case of Massine v de Basil
(1938) 82 Sol. Jo. 173 (CA) (an employees’ copyright/implied assignment
of copyright case).
49 In the UK, dance/choreography is a subset of the dramatic work,
Charlotte Waelde and Sarah Whatley, ‘Performing arts: a study of dance’
in Abbe EL Brown and Charlotte Waelde (eds), Research Handbook on
Intellectual Property and Creative Industries (Edward Elgar 2018) 199-
215 (203) In Germany, dance/choreography is a subset of pantomime in
law, German Author’s Rights Act 1965, § 2(1)(3), although this is incor-
rect from an artistic viewpoint, Ulrich Loewenheim, ‘§ 2 para 153’ in
Schricker and Loewenheim (n 43) 174.
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22 Andreas Rahmatian
also confronted with these problems of ascertainment of
the existence and extent of the right. France resorts to the
requirement of copyright-like xation (against the gen-
eral droit d’auteur principle) to ascertain and prove the
choreographic right in question.50 A sophisticated phil-
osophical approach may consider the visual imagery of
dance as something that can be dissected into distinct, and
ultimately static, phases or stills which together produce
the performance, while such a dissection to reach a ‘static
frame’ is not possible for music, not even down to a single
tone.51 Despite dance being real movement and change,
it can provide static moments of rest and immovability,
even torpor (like the tableaux vivants of the early twenti-
eth century52), because it is visual. In any case, it appears
that while dance and music share the performance as the
central work-creating element, the technique of the legal
construct that enables the protection under copyright law
is much more elaborated with music than with dance.
The term ‘performance’ seems vaguer than one would
perhaps think: for example, in English law the Court of
Appeal said that a lm that used a jump-cutting tech-
nique for editing cannot be performed physically and
therefore cannot be a dramatic work, while the show-
ing of that lm itself is a performance (therefore mak-
ing the lm a dramatic work).53 This interpretation is
doubtful and confuses the meaning of performance:54 a
lm can contain a performed dramatic work (the lm
script), but it is not a performance itself. Films are mov-
ing images, starting from experiments in the nineteenth
century, like those by Eadweard Muybridge, and it is
irrelevant whether the recording of the images is on
celluloid or electronic/magnetic. In every version they
are recorded static images, and the time-bound move-
ment is created by an illusion relying on the physiolog-
ical inertness of the eye. But each frame is static and in
this microstructure not that different to pictures in the
visual arts. The same presumably applies to video art,
as long as it contains a lm sequence as it is tradition-
ally understood – but any experimental art can only be
assessed individually.
Music, in turn, consists genuinely of movement and
change throughout and cannot provide a static moment
which would be a safe reference point for a property right
and its extension or limits. This even applies to the micro-
structure of music. Physically-acoustically, even a single
tone, which would only be a small segment of the complete
work of music anyway, cannot be ‘static’ and detached
from time, otherwise it cannot exist. In reality even a sin-
gle tone makes micro-movements in frequency and ampli-
tude in fractions of a second that are characteristic of the
individual musical instruments, as a spectrogram would
reveal.55 Only one sound is, apart from its time-depen-
dency, entirely immutable, the most articial sound of all:
the sine wave of the pure tone. Music is a living art, like a
breathing animal: if there is no change, or put differently,
no time, the animal is dead.
3. The need for the performance of music
This ‘vitalist’ aspect of the living art of music becomes apparent
in the need for performance: there is no music without its per-
formance. While we can look at a painting with our unaided
senses, we usually need highly skilled musicians to realise the
piece of music. The musicians create and recreate the piece of
music with each performance, a slightly different individual
animal of the same species: no cat is exactly the same but all
belong to the same kind. The same applies to every perfor-
mance of Mozart’s piano concerto No. 27 in B-at. A sound
recording of that piano concerto is strictly speaking a recording
of a past musical performance, not the music itself, like a lm
recording of a cat, not the cat itself. The sound recording or
phonogram is not an arrangement of sounds, thus not an origi-
nal creation or its performance, but the xation of such sounds
as they occur in a performance which can then be replayed.56
Music is therefore an organisation of sounds by the
human mind that needs to be performed by human beings
to be realised or brought into existence in a lapse of time.
Music exists only in and through its performance, and it
never exists at once in full (unlike a work of visual art57)
but emerges and vanishes gradually in the ow of time. So
we do not have a ‘full picture’, a dened and static prop-
erty object to which the property right of copyright clearly
relates and which denotes the extent and limit of the right
that third parties have to respect without having a contrac-
tual relationship to the titleholder. In addition, we do not
have the property object at the outset, static or not, but
have to recreate it every time through the act of perfor-
mance by specialists to bring it into existence. Our unaided
senses alone would not make it perceivable.
Copyright law separates performance from composi-
tion, the latter being protected by musical copyright, the
former (depending on the jurisdiction58) by performers’
rights,59 although court decisions have obviously rec-
ognised the central importance of the performance for the
making of the work of music, for example, in the US case
Capitol Records v Mercury Records Corp.:60
50 See for France, Code de la propriété intellectuelle 1992, art L112-
2, 4°: ‘la mise en œuvre est xée par écrit ou autrement’. Vivant and
Bruguière (n 2) 182-85 in relation to the ‘spectacle vivant’ generally.
Germany does not require xation for choreographic works, see Ulrich
Loewenheim, ‘§ 2 para 153’ in Schricker and Loewenheim (n 43) 174.
51 See immediately below.
52 eg the English case Hanfstaengl v Empire Palace [1894] 2 Ch. 1.
53 Norowozian v Arks Ltd. [2000] FSR 363 (CA).
54 On the confusion between the content (dance, choreography) and
the container of the content (lm) and its subsequent changes to it (jump
cutting), see Tom Rivers, ‘Case Comment: Norowzian revisited’ (2000)
22 E.I.P.R., 389-93 (390-91).
55 Juan G Roederer, The Physics and Psychophysics of Music: An
Introduction (4th edn, Springer 2008) 114-18, 127-29, 135-47, 153-55.
56 See also recently Case C-476/17 Pelham and others v Ralf Hütter and
another ECLI:EU:C:2018:1002, Opinion of AG Szpunar, para 30.
57 See Theodor W Adorno, Musikalische Schriften I-III: Klangguren,
Quasi una fantasia, Musikalische Schriften III (Suhrkamp 2003) 631.
58 There was no performer’s right in the USA until 1972, see Melvin L
Halpern, ‘Sound Recording Act of 1971: An End to Piracy on the High
C’s.’ (1972) 40 George Washington Law Review, 964-94, 982 on the
Sound Recording Act 1971. On the traditional position in the USA before
1972, see eg Herbert T Silverberg, ‘Authors’ and Performers’ Rights’
(1958) 23 Law and Contemporary Problems 125-64 (150).
59 On the international regime of performers’ rights (Rome Convention
for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations 1961 etc) see eg Kanchana Kariyawasam
and Rangika Palliyaarachchi, ‘The song would be nothing without
someone to sing it: copyright and performers’ rights in music’ (2021) 35
International Review of Law Computers & Technology 222-45 (224-25).
60 US: Capitol Records v Mercury Records Corp. US Court of Appeals,
221 F. 2d, at 664 (2d Cir. 1955), by Learned Hand J (dissenting).
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The Musical Work in Copyright Law 23
‘I also believe that the performance or rendition of a
“musical composition” is a “Writing” under Article
I, § 8, Cl. 8 of the Constitution separate from, and
additional to, the “composition” itself. It follows
that Congress could grant the performer a copy-
right upon it, provided it was embodied in a physi-
cal form capable of being copied. The propriety of
this appears, when we reect that a musical score in
ordinary notation does not determine the entire
performance, certainly not when it is sung or
played on a stringed or wind instrument. Musical
notes are composed of a “fundamental note” with
harmonics and overtones which do not appear
on the score. There may indeed be instruments
– e.g. percussive – which do not allow any lat-
itude, though I doubt even that; but in the vast
number of renditions, the performer has a wide
choice, depending upon his gifts, and this makes
his rendition pro tanto quite as original a “com-
position” as an “arrangement” or “adaptation”
of the score itself […]. Now that it has become
possible to capture these contributions of the
individual performer upon a physical object [a
sound recording] that can be made to reproduce
them, there should be no doubt that this is within
the Copyright Clause of the Constitution.’
This passage contains a clear recognition of the role of
the performance for the work of music beside the com-
position and also refers to the importance and limits
of the musical text or score. However, when it comes
to the ‘xation’ of the performance through a sound
recording, the reasoning becomes a little imprecise. The
written text of the music, the score, is not the music,
but a building instruction for the performance that cre-
ates the music. However, it is the written text of the
music which enables the protection of the composed
music as a musical work of copyright: the score is the
reied evidence of the composed musical work which
contains the music as the art form. With this reication,
the work of music becomes xed, an object to which the
property right of copyright can attach and whose limits
of protection can be ascertained. This is effectively a
transmutation from the transient and evanescent time-
bound art form of music to a static space-based object,
similar to a work of the visual arts or of architecture.
The copyright-property commodies the xed object
that represents the music without being it: the music
itself remains the live performance based on the score,
if there is one.
The necessity of xation of the musical work as a static
medium that represents the music as a living art form
is reected in the requirement of recording or xation of
the work for copyright protection in copyright countries.61
Author’s rights countries do not have this requirement,62
hence an improvisation or impromptu playing of a piece of
music is protected by author’s rights as such without any
xation/recording63 (although in an infringement action the
composer will have to prove the ‘features’ of his or her work
of improvised music, and that will hardly be possible with-
out a recording). Nevertheless, author’s rights countries also
require the work to be perceivable by the senses of third
parties: the mere thoughts of the composer which have not
been expressed to the outside world obtain no protection.64
Mozart was famous for having been able to compose whole
works in his head,65 but for copyright purposes the composer
must either write down the work or have the performance
recorded on tape (copyright countries’ recording require-
ment), or played without a recording (sufcient in principle
for author’s rights countries). In any event, the work has to
enter the outside world.
Writing down or recording is, however, not consti-
tutive to the art form of music – it can perfectly well
exist without any xation, although notation is charac-
teristic of Western art music and its polyphonic nature.66
Works of visual art, however, need xation; therefore,
in the UK CDPA 1988 the recording requirement is
stipulated for literary, dramatic and musical works, but
not for artistic works,67 because without a recording of
some kind (paint strokes, carving out of a stone, etc.)
the artistic work would simply not exist.68 In non-West-
ern cultures, performance without a written score as its
basis is very common: most examples of non-Western,
particularly African, classical or traditional music were
passed on to future generations and preserved by way
of oral tradition.69 The same applies to the techniques
of performances of (North) Indian classical raga music
and its methods of communication with the audience,70
and even Western performance techniques in baroque and
classical music were handed down from teacher to pupil
and sometimes preserved in contemporary or modern
textbooks which are now consulted for an ‘authen-
tic’, historically informed practice of performances of
baroque music, for example.71 Where there is a (Western)
61 eg US Copyright Act 1976, 17 U.S.C. § 102(a), UK CDPA 1988,
s 3(2), New Zealand, Copyright Act 1994, s 15(1). Australia, Telstra
Corporation Limited v Phone Directories Company Pty Ltd. [2010] FCA
44, para 20. The Copyright Act 1968 does not make a clear statement
on this requirement. The situation is similar in Canada: the decision in
Admiral Corp v Rediffusion Inc. [1954] Ex. C.R. 382, 394, is usually
referred to as the basis for the xation requirement in Canadian copy-
right law, but the statute is silent about that requirement.
62 See eg France, Vivant and Bruguière (n 2) 138.
63 eg for Italy, see Cesare Galli and Alberto M Gambino, Codice
Commentato della proprietà industriale e intellettuale (Wolters Kluwer
Italia 2011) 2853. For Germany, see Ulrich Loewenheim, ‘§ 2 para 144’
in Schricker and Loewenheim (n 43) 170.
64 eg for Austria: Appl in Wiebe (n 18) 205, for Germany: Rehbinder (n
27) 32, for Italy: Ubertazzi (n 22) 1640, col. 2, 1670, col. 2.
65 There is evidence of this in one of Mozart’s own letters to his sister,
in which he explained to her why he had written his prelude and fugue
that he sent to her in reverse, with the fugue rst because he composed
the prelude while he noted down the fugue already composed in his head,
letter dated 20 April 1782 in relation to the work K. 394 (382a). See
Wolfgang A Mozart, Briefe und Aufzeichnungen, Gesamtausgabe Vol 3
(1780-1786) (Bärenreiter 2005) 202-03.
66 Willi Apel, The Notation of Polyphonic Music 900-1600 (4th edn,
The Mediaeval Academy of America 1953) xix-xx.
67 UK CDPA 1988, s 3(2).
68 The US Copyright Act 1976 does not make a distinction between
different works in relation to the xation requirement, see § 102(a): ‘[…]
original works of authorship xed in any tangible medium of expression,
now known or later developed, from which they can be perceived, repro-
duced, or otherwise communicated […]’.
69 Alan P Merriam, The Anthropology of Music (Northwestern
University Press 1964) 179.
70 eg Martin Clayton, ‘Communication in Indian Raga Performance’
in Dorothy Miell, Raymond MacDonald and David J Hargreaves (eds),
Musical Communication (OUP 2005) 361-80 (365-70) for an ethno-
graphic study of a raga performance.
71 For example, Jesper Bøje Christensen, 18th Century Continuo
Playing: A Historical Guide to the Basics (Bärenreiter 2002) on eigh-
teenth century Basso Continuo playing.
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24 Andreas Rahmatian
art performance or happening (which breaks down clas-
sical art categories between visual art, music, literature
and dramatic works anyway), any attempted copyright
protection would face the same problems as with music
as a non-static, evanescent art form.72
4. Performance of music as its initial creation
and joint authorship
One can see that performance has a role not only in the
recreation of the music, but potentially also in the initial
creation of the music. In the latter case, the performance is
not an implementation of the existing building instruction
of the score, but can be the creation of the musical piece
itself for the rst time. Here Learned Hand J’s reasoning in
Capitol Records v Mercury Records Corp. becomes some-
what confused: he separates the composition and its ren-
dering as performance and makes both separate copyright
works if they comply with the xation requirement (also in
the form of a sound recording). In fact, however, a perfor-
mance is the carrier and realising force of the composition
and renders the copyright work; it is not an independent
(musical?) work and separate from the composition. The
same is true of musical pieces that are created for the rst
time through a performance (improvisations): in this case
the performance creates and shapes the new music as the
object of the copyright protection as a musical work. That
can also apply to (perhaps ‘creative’ or ‘eccentric’) perfor-
mances of existing music, such as ‘covers’ in the pop music
sector or in classical music, where the standard of perfor-
mances is normally more rigid, with less interpretative free-
dom: if the performance moves so far from the performed
work that it obtains independent copyright-originality and
becomes a separate work of music, it attracts copyright
protection as a musical work (not as a performance) in its
own right, provided the distance to the pre-existing work
is sufcient and only the (unprotected) ideas or concepts of
the pre-existing work can be considered as an inuence.73
Depending on the circumstances, such a performance can
be the creation of a new work of music, even if it is perhaps
an homage to an earlier work, but then the (new) compo-
sition aspect matters for copyright purposes,74 not that of
the performance. These considerations are also relevant in
the discussion of variations and arrangements.75 Where the
performance, within the usual variations, is still a perfor-
mance of an existing piece of music, there is no copyright
protection for the performance as such but only perform-
er’s rights protection as a related right, where applicable.
Learned Hand J’s copyright construct of the performance
may also have been prompted by the fact that at that time
performers and sound recordings (as the xation of perfor-
mances) had no protection under US law.76
The (re)creation of music through its performance
is also a central question in the ascertainment of joint
authorship. The practical scenarios can mostly be found
in pop music. For example, a band consisting of a lead
singer (A), a guitarist (B), a bass guitarist (C) and a
drummer/percussionist (D) perform their songs on stage.
The songs are written either (1) by A, who writes the
lyrics and the music, or (2) by A (lyrics) and A and B
(music). In these straightforward situations, in case of
(1) A is author and copyright owner of both the liter-
ary work of the lyrics and the separate musical work
(that depends on the individual jurisdiction’s denition
of ‘musical work’),77 and in case of (2) A is single author
and copyright owner of the lyrics and joint author and
owner with B in relation to the music.78 C and D are
mere performers, and all four, A, B, C, D, enjoy perform-
ers’ rights. But are C and D always performers only?
What happens if C adds a bass guitar solo to the perfor-
mances which (within a certain spectrum) remains the
same in all performances, and D uses a special rhythm
pattern and/or drumming style which is characteristic
for the auditory experience of the performed songs, nei-
ther of which has been written by either A or B? The
typical conict situation that arises before the courts is
that the band members have fallen out and C and/or D
claim a share in the royalties, which requires acknowl-
edgement of C’s or D’s joint authorship as the basis of
this claim.79
Some UK cases show the transition from mere perfor-
mance to co-composition that leads to joint authorship of
the musical work.80 In Stuart v Barrett81 a drummer who
joined a band later claimed joint authorship for his con-
tribution. During the making of the song in question, he
tried different drum beats and ended up with an off-beat
drum pattern which seemed to t well, and the other band
members joined in with embellishments and changes. By
the end of the session they had a completed piece of music,
without words, which became the song in question. While
the court refused to lay down any general rules which
would apply to all group compositions, it had, in this
individual case,82 ‘no doubt about the signicance of the
drum part to the whole of the work. The work is given
shape and drive by the drummer and a good drummer,
as I accept the plaintiff is, can signicantly inuence the
whole composition.’
Although ‘the player of tuned percussion might be
more readily recognisable as a contributor to a musical
composition than a drummer’, a rejection of a drummer’s
contribution in principle would be a misinterpretation
72 See also below under II.5.
73 On the idea-expression dichotomy, see below under IV.1.
74 Provided that this performance is xed in copyright countries.
75 See eg, UK: Redwood Music Ltd v Chappell & Co Ltd. [1982] R.P.C.
109, at p 120, on possibly infringing, yet by themselves copyright-pro-
tected arrangements. The music arrangement deserves an article in its
own right and goes well beyond the present discussion.
from 1976 with the present US Copyright Act, see eg Skidmore v Led
Zeppelin 952 F. 3d 1051, at 1062 (9th Cir. 2020).
77 See above under I. In the present example the UK approach has been
taken.
78 On joint authorship and co-authorship in music, see Alison Firth,
‘Music and co-authorship/co-ownership’ in Rahmatian, Concepts of
Music and Copyright: How Music Perceives Itself and How Copyright
Perceives Music (n 34) 143-66 (146, 153, 162-164).
76 Sound recordings were not protected by copyright until 1972, but
only for sound recordings as from 15 February 1972, and then generally
79 There may be a contractual arrangement in place (or the forming of a
partnership/company) between the bandmembers. In some jurisdictions,
there may be default rules for the exercise of economic rights among
co-authors, eg in Italy, Author’s Rights Act 1941, s 34 and Ubertazzi (n
22) 1799, col. 1. This is disregarded in the following, because the co-au-
thorship or joint authorship is in dispute here.
80 On joint authorship more generally in US law, see eg Aalmuhammed
v Lee 202 F.3d 1227, at 1233-1234 (9th Cir. 2000).
81 UK: Stuart v Barrett [1994] E.M.L.R. 448.
82 [1994] E.M.L.R. 448, at 460.
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The Musical Work in Copyright Law 25
of a drummer’s contribution to composition in contem-
porary (pop) music.83 In the rst instance decision84 of
Fisher v Brooker,85 the subject-matter was a tune, played
on a Hammond organ, for which joint authorship was
claimed. The court found that Matthew Fisher, the for-
mer Hammond organ player of the pop group Procol
Harum, was joint author and copyright owner of the
song ‘A Whiter Shade of Pale’ (1967) for his famous eight-
bar organ solo introduction which was recognised as a
musical work and an original contribution to the song.
Mr. Fisher did much more than copy what Mr. Brooker,
the defendant, had earlier performed. Mr. Fisher was at
most building upon ‘ideas’ used in the course of rehearsal.
Mr. Fisher’s organ solo as heard in the rst eight bars of
the work and as repeated was sufciently different from
‘what Mr. Brooker had composed on the piano to qualify
in law, and by a wide margin, as an original contribution’
to the musical work.86 In other words, the claimant Mr.
Fisher did not just perform the defendant’s, Mr. Brooker’s,
music, but performed and thereby composed an indepen-
dent part of the work that forms part of the overall piece
of music and becomes an original contribution.
For music, an art form that relies on performance
for its existence, it is irrelevant whether the music was
rst constructed as a separate composition (on paper)
and then performed, or whether it was created in a
performance.87 In pop music and jazz,88 rehearsals and
recording sessions which are effectively or deliber-
ately improvisations and composition sessions are the
norm anyway,89 but even in classical music Mozart or
Beethoven were performer-composers in relation to
many of their works or parts of them. Only where the
performance is a rendering of music composed earlier
(rarely the case in pop music) with no original improvi-
sation, joint authorship of the merely performing musi-
cians can be ruled out.90
These cases suggest the following interpretation: the
performance crosses the line to composition where an
element of the performance fulls the originality require-
ment for copyright protection, so that this element of the
performance becomes a contribution to the composition
of the piece of music as a whole and a part of the musi-
cal work for copyright protection purposes (bestowing
joint authorship if different authors were involved). The
required criteria of originality depend on the jurisdic-
tion in question, such as the originality requirements in
the UK91 or the US,92 or the author’s rights denitions of
originality, such as a personal contribution or a stamp
of the author in France,93 a personal intellectual creation
in Germany,94 intellectual works of creative character in
Italy95 or, at the EU level, ‘own intellectual creation’, that
is, a minimum level of creativity,96 at least for some types
of copyright work.97 This issue goes beyond the present
discussion.
Where court decisions paint a slightly confused pic-
ture is when they try to use aesthetic criteria to ascer-
tain whether a contribution by a performer is original
for copyright purposes and can therefore confer joint
authorship. This happened, for example, in Hadley v
Kemp, where it was said that in order not to be regarded
as mere performance or interpretation of musical works,
‘the contributions need to possess signicant creative
originality’98 to qualify for joint authorship. In Stuart v
Barrett, the court said that ‘a good drummer […] can sig-
nicantly inuence the whole composition’,99 which sug-
gests that the drummer’s contribution must have a certain
(superior?) quality, presumably deriving from his ‘good’
drumming skills.100 Could a defendant who is faced with
a joint authorship claim then perhaps concede the contri-
bution but also argue that it ruined the artistic quality of
the work and in this way defeat the claim?
Difcult as this is may be to implement in individual
cases, a legal denition of originality, even in the sense of
‘creative originality’ which is – as an ideal type101 – the
more common criterion of originality in author’s rights
countries, is not to be inuenced by aesthetic decisions
83 ibid.
84 UK: Fisher v Booker went to the House of Lords on appeal, in Fisher
v Brooker [2009] UKHL 41, [2009] 1 WLR 1764, but the House of
Lords decision particularly dealt with the question of whether a claim
for royalties and joint copyright authorship/ownership could be time-
barred after a long delay by the claimant, in view of copyright being a
property right. The issues relevant in the present context were discussed
in the rst instance judgment.
85 [2006] EWHC 3239 (Ch), [2007] F.S.R. 12.
86 [2006] EWHC 3239 (Ch), paras 40-42.
87 Firth (n 78) 152.
88 Björn Heile, ‘Who wrote Duke Ellington’s music? Authorship
and collective creativity in ‘Mood indigo’’ in Rahmatian, Concepts of
Music and Copyright: How Music Perceives Itself and How Copyright
Perceives Music (n 34) 123-42 (124-28). On composer-performer
authorship in jazz, see Rebecca Noble, ‘The Invisible Artists of Copyright
Jurisprudence: Joint Authorship in Jazz Improvisation Under Canadian
Law (The Canadian Bar Association, 16 November 2021) <https://www.
cba.org/Sections/Intellectual-Property/Resources/Resources/2021/The-
Invisible-Artists-of-Copyright-Jurisprudence> accessed 16 July 2023.
89 See also UK: Hadley v Kemp [1999] E.M.L.R. 589, at 638-40, which
recognises this.
90 Hadley v Kemp (n 89) was such a rare case in pop music. See case
comment by Richard Arnold, ‘Case comment: Are performers authors?’
(1999) 21 E.I.P.R. 464-69. See also further discussion of this and related
cases in Andreas Rahmatian, ‘The elements of music relevant for copy-
right protection’ in Rahmatian (n 34) 78-122 (569-71).
91 UK: University of London Press v University Tutorial Press [1916] 2
Ch 601, at 609–610, per Peterson J; Ladbroke (Football) v William Hill
(Football) [1964] 1 WLR 273.
92 US: Feist Publications, Inc. v Rural Tel. Serv. Co. 499 U.S. 340, 361,
111 S.Ct. 1282, 113 L.Ed. 2d 358 (1991).
93 Vivant and Bruguière (n 2) 232-35.
94 German Author’s Rights Act 1965, § 2(2), ‘persönliche geistige
Schöpfungen’. See Rehbinder (n 27) 68.
95 Italian Author’s Rights Act 1941, art 1(1): ‘opere dell’ingegno di car-
attere creativo’. See also Ubertazzi (n 22) 1637, col. 1.
96 About this autonomous originality concept of the EU, see Ubertazzi
(n 22) 1637, col. 2.
97 How far the EU originality denition reaches, following the CJEU
Case C-5/08 Infopaq International v Danske Dagblades Forening
ECLI:EU:C:2009:465 and subsequent cases of the CJEU, is not so easy
to ascertain. See discussion in Andreas Rahmatian, ‘Originality in UK
Copyright Law: The Old ‘Skill and Labour’ Doctrine Under Pressure’
(2013) 44 International Review of Intellectual Property and Competition
Law 4-34 (10, 29-30).
98 UK: Hadley v Kemp (n 89) 644.
99 UK: Stuart v Barrett (n 81) 460.
100 UK: Godfrey v Lees [1995] E.M.L.R. 307 at 325, is more cau-
tious: ‘It is not necessary that [the claimant’s] contribution to the work
is equal in terms of either quantity, quality or originality to that of his
collaborators.’
101 This is theoretical purity, because author’s rights countries apply the
kleine Münze (‘small change’) concept for works of a utilitarian nature
and grant copyright protection to these. See eg for Germany in the area
of music (one of the most important applications of the kleine Münze
concept) the German Federal Supreme Court (BGH), [1991] GRUR
533, at 534 – Brown Girl II. Generally on the kleine Münze concept, see
Rehbinder (n 27) 31, 69.
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26 Andreas Rahmatian
of what ‘good music’ is.102 It is trite knowledge that
banal and commonplace tunes are almost always orig-
inal enough to obtain copyright protection, otherwise
much of the music industry would face serious prob-
lems. The recent UK case Edward Sheeran v Sami Chokri
could be seen as an example of mass-produced music,
but originality and subsistence of copyright were rightly
not at issue, only infringement.103 When Ed Sheeran won
the case in April 2022, he released a video statement in
which he said that ‘there are only so many notes and very
few chords used in pop music; coincidences are bound
to happen’.104 That may not be artistically-aesthetically
satisfying105 but it underlines the ultimate purpose of
copyright protection in the music business: the creation
of musical works as a legal category, that is, merchant-
able objects of property.
5. Non-traditional forms of music
composition and performance: experimental
music
The confrontation with modern ‘art music’ or modern ‘clas-
sical music’ quickly shows the limits of copyright protection
for music. The problem is, however, a theoretical one, partly
because commercially this branch of music is rather irrele-
vant and so there is no benet in starting lawsuits,106 partly
because lawyers hardly have any connections with this type
of music, so they would not think much about possible
copyright problems, and partly because modern compos-
ers and performers (in modern music-making these groups
have merged more again, as until the nineteenth century)
are concerned with creating art, and are little interested in
academic divisions of art forms and a fortiori very little con-
cerned about (and with) copyright. A proper examination
of this issue would have to be referred to a separate discus-
sion beyond this text, because it is more a question of (legal)
philosophy than of copyright law how to deal with the legal
institution of copyright if a signicant proportion of those
whom this institution seemingly protects view it as only
dampening and hindering their creativity and art-making.
For example, the Fluxus movement,107 both in relation to
visual art and to music (e.g. John Cage), rejects the notion
of the work of art altogether, which is supposedly the focal
point of copyright protection. Bazon Brock proposed the
following about the visual arts in 1976:108
‘Traditionally, artists produce in the studio and then
publicly exhibit the results of their work as works
of art. [...] With the maxim “work is a discarded
tool” (Werk ist abgelegtes Werkzeug) we aimed at
a different identication of the results of the pro-
cess. [...] I called this for the international linguistic
usage Cognitive Tools, German Erkenntnismittel.
[...] “Create problems, not works of art” or:
“Polemicize vividly instead of disseminating works
of art, so that we have something to think about
instead of merely admiring what is only dust and
paint.”’
John Cage said in a lecture (Composition as Process, II.
Indeterminacy) in 1958:109
‘This is a lecture on composition which is inde-
terminate with respect to its performance. The
Klavierstück XI by Karlheinz Stockhausen is an
example. The Art of the Fugue by Johann Sebastian
Bach is an example. In The Art of the Fugue, struc-
ture, which is the division of the whole into parts;
method, which is the note-to-note procedure; and
form, which is the expressive content, the morphol-
ogy of the continuity, are all determined. […] In the
case of the Klavierstück XI, all the characteristics
of the material are determined, and so too is the
note-to-note procedure, the method. The division of
the whole into parts, the structure, is determinate.
The sequence of these parts, however, is indeter-
minate, bringing about the possibility of a unique
form, which is to say a unique morphology of the
continuity, a unique expressive content, for each
performance.
The function of the performer, in the case of The
Art of the Fugue, is comparable to that of someone
lling in colour where outlines are given. […]
The function of the performer in the case of the
Klavierstück XI is not that of a colourist but that
of giving form, providing, that is to say, the mor-
phology of the continuity, the expressive content.
This may not be done in an organized way: for form
unvitalized by spontaneity brings about the death
of all the other elements of the work.’
These two passages, if consequently implemented,
would blow up every concept of musical/artistic crite-
ria that are relevant to copyright protection. To what
extent is the aleatoric piece Klavierstück XI (1956) by
Karlheinz Stockhausen inuenced by John Cage’s Music
of Changes (1951)?110 Would this inuence be relevant
for copyright purposes? What really constitutes the
work of music? What exactly is protected in either piece
(what about melody, harmony, rhythm)? On which
basis could one protect John Cage’s famous 4’ 33’’
piece (1952) at all?111 The artistically correct answer to
102 Generally for copyright/author’s rights originality, see eg for the UK:
Cornish, Llewelyn and Aplin (n 20) 442-44, for Germany: Rehbinder (n
27) 68, for France: Vivant and Bruguière (n 2) 232-35 (237).
103 UK: Edward Christopher Sheeran, Steven McCutcheon, John
McDaid et al. v Mr Sami Chokri, Ross O’Donoghue, Artists and
Company Ltd. [2022] EWHC 827 (Ch), para 7.
104 See Ed Sheeran, ‘Dealing with a lawsuit recently. We won and I
wanted to share a few words about it all’ <https://www.youtube.com/
watch?v=A8cXaCtUrT8> accessed 14 July 2023.
105 See eg Max Horkheimer and Theodor W Adorno, Dialectic of
Enlightenment: Philosophical Fragments (Gunzelin Schmid Noerr (ed))
(Stanford University Press 2002) 98-99 (101, 127-28).
106 Compare Ulrich Loewenheim, ‘§ 2 para 152’ in Schricker and
Loewenheim (n 43) 174.
107 An approximation to what Fluxus was (or is) eg in Harren (n 40)
2-18. The blending of music, literature, theatre, performance and ne art
into one another was characteristic of Fluxus.
gedacht? (2nd edn, Verlag der Buchhandlung Walther König 2020) 86-87
(own translation).
109 John Cage, Silence: Lectures and Writings (Wesleyan University
Press 1961) 35.
110 On these two composers’ music, see briey, Ulrich Dibelius,
Moderne Musik II: 1965-1985 (Piper Verlag 1994) 87, 102. On John
Cage, see also Harren (n 40) 83-86.
108 Bazon Brock, ‘Werk ist abgelegtes Werkzeug’ (1976) in Bazon
Brock, Theoreme: Er lebte, liebte, lehrte und starb. Was hat er sich dabei
111 A copyright analysis of this piece by David M Seymour, ‘This is the
piece that everyone here has come to experience: the challenges to copy-
right of John Cage’s 4’33’’’ (2013) 33 Legal Studies 532-48 (534-46).
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The Musical Work in Copyright Law 27
all these questions presumably is: why is that relevant?
(And these ‘modern’ examples are already over 60 years
old.) This shows that copyright was initially designed
for, and conceptually modelled upon, the protection of
what today would be named ‘classical music’ from the
late eighteenth century onwards – the application of
the UK Statute of Anne of 1710 for literary works was
extended to music by the decision of Bach v Longman
in 1777;112 author’s rights protection then started on
the European continent from the 1800s onwards. One
could say, in the spirit of Adorno,113 that copyright
was made for older ‘classical’ music, and current pop-
ular music is made for copyright – if it is truly popu-
lar, that is, a commercially successful musical product.
This reveals that the term ‘popular music’ is no artistic
category but only a commercial classication, even if
some musicologists may consider that differently. Any
instance of contemporary music, whether more ‘tradi-
tional’ or experimental, style- and category-transgress-
ing, crossover (not only ‘classic/pop’ but also into other
categories of art, video art, performances involving
dance or visual art creation) will have to be considered
individually if a copyright issue comes about. It may
not satisfy the academic scholar that he or she cannot
develop general rules ex ante beyond broad copyright
principles,114 but that is the reality of this art form. One
will hope that any deciding courts will have good expert
witnesses at hand,115 so that judgments may not dam-
age the art with inept normative pronouncements. It is
interesting to see that music, particularly in its avant-
garde areas, remains true to its nature: this elusive and
anarchistic art form ultimately keeps escaping from any
detailed ascertainment by the law.
III. The difference between music and the
musical work
In the discussion so far we have already carefully divided
music as the art form (with the piece of music or work of
music as an instance of this art form) from the musical
work as a normative category of copyright law. This dis-
tinction is necessary from the perspective of legal theory
and the theory of music, but it also has a practical rele-
vance in copyright law. In music theory and philosophy,
there is a conception of the musical work which seems to
have developed in the early nineteenth century, with the
onset of Romanticism.116 This view has been criticised,
particularly by early music specialists who claim that
ideas of the musical work had emerged in the Renaissance
already.117 This controversy among musicologists is not
relevant to the legal denition of the ‘musical work’, also
because the law normatively decides what qualies as a
musical work, and that may not coincide with a musi-
cian’s or musicologist’s understanding. Leaving some
music specialists’ subtle academic denitions aside, for
the musician a musical work is a separate musical piece:
that piece can have a shorter form (e.g. a song, by far the
most relevant form in court actions) or a longer one, such
as a symphony or violin concerto, but it is always a sep-
arate piece containing music as a distinctly expressed use
of the craft of the musical art (melody, harmony, rhythm,
etc., if applicable),118 and the musical work consists of
and contains conclusively this individually expressed inci-
dence of the musical craft. In law, the musical work as a
normative category can go beyond that.
The UK case of Sawkins v Hyperion119 is a rare exam-
ple where the difference between the music (in a musico-
logical sense) and the musical work (in a legal, copyright
sense) can be studied. Leaving aside those facts that are
not material to the present discussion,120 the case had to
decide whether a performing edition of seventeenth-cen-
tury baroque music, prepared by a musicologist (the
claimant Sawkins), can obtain copyright protection on
which that musicologist’s claim for royalties against a
record company for the use of his performing edition
in recordings of this baroque music can be based. A
musician would presume that the music in question is
seventeenth-century baroque choir music which is not
(and in fact never was) in copyright. The performing
edition is an assembly of the various manuscripts in
different libraries to a score for the realisation of the
performances, but no new music. Even where the musi-
cologist has recomposed missing parts in the style of the
seventeenth-century composer, one may consider this a
kind of restoration work, but not new music for which
copyright protection could be claimed. No copyright
would subsist in the edition as a musical work itself.
This is exactly what the defendant recording company
Hyperion argued.121
The court held in favour of the claimant musicolo-
gist that his edition of the seventeenth-century music
is a musical work and is copyright-protected. For the
classical music business this nding has come as a sur-
prise, presumably also because of the wrong assumption
that baroque music would now be copyright-protected.
However, from a copyright lawyer’s perspective, this
decision is straightforward. The claimant created a
recorded (xed) original musical work which the per-
forming edition constitutes and therefore he obtains
copyright protection for it (not for the music which this
edition contains). The musical work as a legal denition
can go beyond what a musician commonly considers as
music: a performing edition, not being the music itself in
112 Bach v Longman [1777] 2 Cowper 623, 98 E.R. 1274.
113 Adorno (n 57) 486-90. See also the analysis about the simplifying
method of hearing in the music industry (and commodication) of the
seemingly simple Sonata Facile by Mozart, Adorno (n 57) 291-92.
114 Hence existing court decisions will generally not be able to provide
functioning precedents for later cases on new music either.
115 See below under IV.2.
116 Lydia Goehr, The Imaginary Museum of Musical Works. An Essay
in the Philosophy of Music (Clarendon Press 1992) 8, 111-15.
117 Discussion in John Butt, ‘What is a ‘musical work’? Reections on
the origins of the ‘work concept’ in western art music’ in Rahmatian,
Concepts of Music and Copyright: How Music Perceives Itself and How
Copyright Perceives Music (n 34) 1-22 (4-10). See also critical discussion
118 On these building blocks of music, see below under IV.1.
119 UK: Sawkins v Hyperion Records Ltd. [2005] EWCA Civ 565;
[2005] R.P.C. 32.
120 A very detailed discussion of this case by Andreas Rahmatian, ‘The
Concepts of ‘Musical Work’ and ‘Originality’ in UK Copyright Law –
Sawkins v. Hyperion as a Test Case’ (2009) 40 International Review of
Intellectual Property and Competition Law 560-91 (562-69).
121 UK: Sawkins v Hyperion Records Ltd. (n 119) para 38.
by Anne Barron, ‘Copyright Law’s Musical Work’ (2006) 15 Social &
Legal Studies 101-27 (105, 115).
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28 Andreas Rahmatian
the ordinary understanding but rather a vehicle for the
performance of the music, can be a musical work. The
court did not make an express terminological distinc-
tion between ‘music’ and ‘musical work’, but effectively
applied such a distinction, following the reasoning from
the rst instance judge:122
‘I do not accept the narrow approach advocated by
Hyperion [the defendant] as to the type and nature
of the work required to attract musical copyright.
Hyperion’s emphasis is on the necessity for compo-
sition or re-composition of new notes of music, as
in a musical adaptation or arrangement, in order to
produce an original combination of sounds appre-
ciated by the ear, rather than on the exacting schol-
arly exertions of Dr Sawkins [the claimant] on the
notation of the scores and the inclusion of perform-
ing indications and directions. […]
Patten J. pointed out ([54]) that the 1988 Act did not
dene what is meant by “music”. As he observed,
however, that is what this case is really about:
“... the real issue which divides the parties is
whether a musical work includes items such as the
guring of the bass, ornamentation and perfor-
mance directions or is really limited for copyright
purposes to the notes on the score, so that in the
case of an existing work nothing less than signi-
cant rearrangement of, or signicant additions to,
the melody will create a new copyright in the edi-
tion of a musical work.”
I agree. I am also with the judge in rejecting
Hyperion’s contention that Dr Sawkins did not
acquire any copyright by virtue of the considerable
effort, skill and time spent by him on the task of
creating the performing editions of the three works
in question. […]’
The musical work therefore includes items such as the
guring of the bass, ornamentation and performance
directions, that is, not the notes and sounds (that is,
‘music’) only. The subject-matter of copyright protec-
tion is not only original music, here in the form of an
adaptation or arrangement of a pre-existing piece of
music, but also a performing edition and restoration of
old music, whereby the restoration by its very nature
does not seek artistic creativity but deliberately sub-
mits to the original composer’s personal artistic style,
in the same way as a picture restorer would approach
the matter. This avoidance of artistic novelty still con-
stitutes originality for copyright purposes (again a
normative term that may depart considerably from the
usual understanding of originality among artists). That
the musicologist’s effort in preparing the performing
edition is sufciently original for copyright protection
is not due to a ‘lower’ originality threshold for copy-
right in the UK (at that time, ‘skill and labour’), but
also applies in France, an author’s rights country with
a more ‘creativity as originality’ approach. The same
musicologist sued on the same facts in France and also
obtained author’s rights protection for this perform-
ing edition.123 This slightly earlier French decision did
not, however, impress the English judges as a persua-
sive authority.124 The French decision is not unusual
for author’s rights countries. In art restoration cases,
restorers frequently obtain author’s rights protection
for their restorations.125 Furthermore, critical (scien-
tic) editions enjoy author’s right protection.126
Another important aspect of the Sawkins decision
was its discussion of the relationship between the music
and its written record. As said earlier,127 the written
text of the music, the score, is the reied evidence of
the composed musical work which contains the music
as the art form. The music score enables the protection
of the composed music as a musical work of copyright
because the property right of copyright can attach to it
as a xed item that is not inherently time-bound. The
Sawkins judgment does not say that specically, but it
does state clearly that the score is not the music, the art
form itself:128
‘In the absence of a special statutory denition of
music, ordinary usage assists: as indicated in the dic-
tionaries, the essence of music is combining sounds
for listening to. […] Music must be distinguished
from the fact and form of its xation as a record of
a musical composition. The score is the traditional
and convenient form of xation of the music and
conforms to the requirement that a copyright work
must be recorded in some material form. But the
xation in the written score or on a record is not in
itself the music in which copyright subsists.’
The musical work is represented and evidenced by the
record, typically a music score, particularly in Western
classical music, but this kind of evidence – which addi-
tionally serves as the necessary xation of the work in
copyright countries – can also be achieved in the form of
a sound recording of a past performance, which is obvi-
ously a much more precise representation of the music
than a music score could be. In contrast, the content
transported by language and alphabetic characters can
reect a novelist’s or playwright’s decisions and wishes
much more clearly than musical notation can do for com-
posers, although modern music notation (more or less
fully developed since the early 1600s)129 is highly sophis-
ticated. The imprecisions of musical notation are partic-
ularly relevant for issues of interpretation. While modern
composers tend to ll their scores with a lot of perfor-
mance directions, composers of the seventeenth and eigh-
teenth centuries only gave very terse instructions,130 so
that the performer is often left with the pitch and length
of the tones only and, perhaps, an indication of the tempi
(‘adagio’, ‘andante’, etc.) for the whole piece. A simple
123 France: Nanterre Tribunal de Grande Instance, 1ère Chambre A, 19
January, 2005, 4-5 – Sawkins v Harmonia Mundi & Ors.
124 UK: Sawkins v Hyperion Records Ltd. (n 119) para 3.
125 eg France: TGI Paris, 1re ch. 28 mai 1997, RIDA 1/1998, p 329 (for
the restoration of sculptures in the façade of the Château de Versailles),
Italy: Trib. Bologna, 23 December 1992, AIDA (Annali italiani del dir-
itto d’autore) 94, 223 – Est. Bruno v Studio Fenice, see Ubertazzi (n 22)
1653, col. 1: the restoration can be regarded as a kind of critical edition
of an artwork. See also Vivant and Bruguière (n 2) 172-73 for France.
126 See eg Italy, Author’s Rights Act 1941, s 85quarter, Ubertazzi (n 22)
1652, col. 2; Germany, Author’s Rights Act 1965, § 70.
127 Above under II.3.
128 UK: Sawkins v Hyperion Records Ltd. (n 119) para 53.
129 Gardner Read, Music Notation: A Manual of Modern Practice (2nd
edn, Taplinger Publishing 1979) 23.
130 ibid 255-56, 275-77, 282, 451-53.
122 UK: Sawkins v Hyperion Records Ltd. (n 119) paras 43-44, 51.
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The Musical Work in Copyright Law 29
example for the problem of notation is the waltz (3/4
time): the standard German type of waltz would be a
steady beat of 1 – 2 – 3, while the Viennese waltz would
have the distinct rhythm of 1 – 2 …| 3, thus an extended
2 followed by a belated 3, which nevertheless has to
come at just the right moment so that it still serves as the
third beat in the bar; hence, an extensive rubato would
destroy this. Nothing of that sort would appear in the
musical notes of a waltz. But one hears the difference
immediately if one listens to a Viennese orchestra play-
ing a waltz by Johann Strauss and a German orchestra
trying to do that as well. It seems to work with Austrian
and Czech orchestras, but not really with German or
Hungarian ones.
It is a philosophical question whether the music score
(which can also be a performing edition, as we have
seen) is the representation of the musical work in law or
is the musical work, but the actual music that the musi-
cal work refers to and denotes only becomes real in its
performance, for which the musical work or music score
provides the necessary instructions. What ultimately mat-
ters, also in an identication of whether there has been
copyright infringement, are the sounds one can hear in
the performance, not what is written in the score. For the
purpose of musical copyright, the score is not an artis-
tic work: similarity of notation without similarity of
the listening experience points away from infringement.
However, what exactly is protected in a piece of music
depends on the use of the elements or building blocks of
the art form of music and their role in the legal assess-
ment of protection.
IV. The elements of music and their
relevance in copyright infringement actions
1. The building blocks of music and the idea-
expression dichotomy
To ascertain the subject-matter of potential copyright
infringement in music, one needs to eliminate those areas
and elements which are not protected by copyright, but
which constitute the building blocks of the architecture
and craft of the art of music in general, the toolkit of
composers and performing musicians, as it were. These
elements of what constitutes Western classical music, pop
music and jazz are: tone131 (pitch, timbre and dynamics
which are determined acoustically-physically), melody,
rhythm, harmony, counterpoint and form (which are all
determined artistically-aesthetically).132 By no means all
criteria may appear in any one piece: for instance, coun-
terpoint as such is found in classical music mostly until
the end of the eighteenth century, but even in pop music
the (counter)movements of voices ultimately hail from
choir music and counterpoint. Particularly in the eld
of pop music (the most important area for litigation) the
following criteria have also been suggested: harmonic and
melodic design, rhythmic design (sound colour or timbre,
arrangement, dynamics), structuring (including phrasing,
repetitions).133 The tone, with its pitch, timbre and volume
(dynamics), can relatively easily be recognised and ascer-
tained as well as distinguished in musical works that are
compared in infringement actions. Furthermore, they are
absorbed in the category of melody. As a working deni-
tion, ‘melody’ is an organised sequence of sounds which
are perceived as intrinsically connected, or, following the
German nineteenth-century music theorist A. B. Marx
(1795-1866), melody134 can be dened as a tonally and
rhythmically organised series of sounds.135 The melody
is practically the most relevant, but not the only, feature
considered in musical copyright infringement actions.136
These elements or building blocks137 constitute
what copyright lawyers would call ‘ideas’, ‘techniques’,
‘methods’ in copyright law, and these techniques of
composition cannot be protected. This is a case of the
idea-expression dichotomy, a concept that is well estab-
lished in copyright countries,138 but applies in effect
in author’s rights countries of the European continent
as well.139 The idea-expression dichotomy also forms
part of national140 and international141 legislation, and
features in the EU Software Directive142 and in CJEU
decisions,143 one of which recently indicated that the
CJEU in its application of the idea-expression dichot-
omy is beginning to transcend the Software Directive.144
Examples of ‘ideas’ and ‘expressions’ in music are: the
131 In acoustics, ‘tone’ is called ‘sound’ or ‘complex tone’ (that is, a
tone with partials, as normally all ‘tones’ in music are), see also Aaron
Christopher Stumpf, Musikschaffen und Urheberrecht. Schutzfähigkeit
und Schutzbereich im Lichte vorbekannter Werke (Nomos Verlag 2023)
32 and note 28, but this is irrelevant for present purposes.
132 For a far more extensive discussion of these criteria for copyright
lawyers, see Rahmatian, ‘The elements of music relevant for copyright
protection’ (n 34) 91-98. The account there obviously does not want to
compete with specialised textbooks on music theory.
133 Stumpf (n 131) 33, who names these criteria ‘design parameters’
(Gestaltungsparameter).
134 Adolf Bernhard Marx, Die Lehre von der musikalischen
Komposition, praktisch theoretisch, Erster Theil (7th edn, Breithopf und
Härtel 1868) 26: ‘Eine tonisch und rhythmisch geordnete Tonreihe heisst
Melodie.’
135 Lawyers would adhere to a similar denition, eg in Italy: ‘La melo-
dia è una successione ordinata ed organica di suoni disposta secondo le
regole di composizione’, see Ubertazzi (n 22) 1648, col. 2. The problem
is that the ‘rules of composition’ do not dene much (and are referred
to in an ahistoric way), and the denition presupposes a certain nine-
teenth-century understanding of tonal music (‘ordered and organic suc-
cession of sounds’), which disregards most of twentieth-century classical
music but largely works for the (artistically usually more conservative)
pop music sector.
136 Compare for Germany, Ulrich Loewenheim, ‘§ 2 para 145’ in
Schricker and Loewenheim (n 43) 170-71.
137 Copyright lawyers tend to follow the musicological denitions of
melody, rhythm and harmony, at least supercially, see eg for France,
Vivant and Bruguière (n 2) 167, according to H Desbois. Vivant and
Bruguière rightly point out that this common denitional canon ts cer-
tain forms of music, but not all. Similar, from a German law viewpoint,
Stumpf (n 131) 60-61.
138 USA: Nichols v Universal Pictures 45 F. (2d) 119 (1930); UK:
Donoghue v Allied Newspapers [1938] 1 Ch. 106, at 110, Designers
Guild v Russell Williams [2001] ECDR 123, para 25, 1 W.L.R. 2416, at
2422-2423, Baigent v Random House [2007] F.S.R. 24, CA.
139 Germany: in substance clearly Eugen Ulmer, Urheber- und
Verlagsrecht (3rd edn, Springer Verlag 1980) 275-76, Rehbinder (n 27)
30-31, 67, Ulrich Loewenheim ‘§ 2 paras 146-147’ in Schricker and
Loewenheim (n 43) 171-72 with regard to music; France: Vivant and
Bruguière (n 2) 130; Austria: Appl in Wiebe (n 19) 204-05.
140 USA Copyright Act 1976, § 102(b).
141 TRIPS Agreement 1995, art 9(2), WIPO Copyright Treaty 1996, art
2.
142 EU Directive 2009/24/EC (Software Directive), art 1(2).
143 Bezpečnostní softwarová asociace v Svaz softwarové ochrany v
Ministerstvo kultury (n 19) paras 48-50.
144 Case C-833/18 Brompton Bicycle v Chedech/Get2Get
ECLI:EU:C:2020:461, para 27 (in this context ‘idea’ also in relation to
a technical function with the application of the merger doctrine: on that
see immediately below).
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30 Andreas Rahmatian
use of a harmonic progression from tonic to dominant
and back to tonic, the use of two voices or parts in con-
trary motion or the construction of a musical piece in
A-B-A-C-A form (a rondo form) does not entitle the
composer to copyright protection. However, these tech-
niques combined with a certain rhythm and a distinct
melody will typically be protectable ‘expression’.145
Thus, progression of chords/harmony, typical rhyth-
mical patterns and commonplace melodic motifs are
unprotectable ideas, while melody (and rhythm) using a
harmony/chord progression or a melody (and harmony)
using this typical rhythm would normally be protect-
able expression. Melody (or more broadly, a sequence
of sounds) is usually the most important criterion.146 If
work B shares the same techniques (‘ideas’) of harmony
and rhythm with work A but uses them in a different
way (in particular a different melody), work B does not
infringe the copyright in work A: the ideas match, but
not the expressions. According to the merger doctrine,
where ideas and expressions merge, there is no protec-
tion available.147 In that case any creative choices which
could confer originality148 are impossible. Merger is a
very rare situation in music.149
It has just been said that the idea-expression dichot-
omy applies in effect in author’s rights countries as well.
However, divergent and not always consistent termi-
nology may lead to the erroneous conclusion that the
idea-expression distinction is of limited relevance in
author’s rights countries, for example in Germany.150 It
does not alleviate the problem that the meaning of ‘idea’
cannot be determined precisely in the Anglo-American
systems either.151 ‘Idea’ can best be dened (loosely)
with regard to the specic art form in question (and
examples from it), as for music above. ‘Idea’ refers to
method, technique, ‘grammar’, style, musical concepts
as analysed by music theory or the craftsmanship aspect
of making art, with its rules and traditional restric-
tions.152 ‘Idea’ does not denote the possibly creative idea
in the composer’s head153 (which, if detailed enough,
may already be an expression that has to materialise in
the outside world to obtain protection:154 either infor-
mally, by playing/improvising the piece, or specically,
through xation as in the copyright systems). ‘Idea’
and ‘expression’ do not correspond to the terms ‘form’
and ‘content’ (‘Form und Inhalt’) either,155 a dichot-
omy which has frequently been used in German law
in the past but is much less relevant today.156 ‘Content’
is often also ‘idea’, particularly if it is information, a
conventional turn of phrase (also musically), something
commonplace without any detectable individual char-
acter – it always depends what the content in question
consists of. One can see the connection to original-
ity, a concept that should actually be separated from
idea-expression in theory.157 But it is largely the original
use and combination of the building blocks of music
(‘ideas’) – an original individual use that refers back to
the maker-composer and leads to copyright protection
– which means music creation in reality. A subset of
that idea-expression relationship to originality can also
be the German ‘distance theory’ (Abstandslehre) with
regard to adaptations of works, whereby the second
work must be sufciently remote from the rst work
to avoid infringement, so that the rst work fades away
in the second work.158 This is typically (not always) the
situation where the second work uses ideas (in the copy-
right sense) but not expressions (denoted particularly
by the appearance of creative individuality) of the rst
work, and therefore the second work does not consti-
tute an infringing adaptation, but is a separate non-in-
fringing new work in its own right, inspired by the rst.
Pre-existing works always have inuenced artists (and
they usually learn their craft from these works159), and
some of their works may be adaptation, some fruits of
inspiration.
Of course, all that sounds neat in theory, but in a
concrete musical copyright infringement action the nec-
essary ascertainment may prove horrendously difcult.
In particular, it is practically impossible to establish gen-
eral principles as to what extent an expression must be
reduced notionally to determine solely the unprotect-
able idea in music,160 a problem resembling the Kantian
‘Ding an sich’.161 Nevertheless, the principal rule stands
that a work that (actively) copies a substantial part162 of
a musical expression, not just of the idea, from another
145 Sid Marty Krofft Tele. v Mcdonald’s Corp 562 F.2d 1157, at 1163
(9th Cir. 1977).
146 This leaves aside the problem of more contemporary and experimen-
tal music which does not provide or attempt the delivery of traditional
‘tones’ or ‘melodies’, see briey Stumpf (n 131) 150. The commercially
more relevant pop music usually fulls the conventional criteria of mel-
ody easily.
147 Generally USA: Baker v Selden 101 U.S. 99, at 102-03, 25 L. Ed.
841 (1879), EU: Bezpečnostní softwarová asociace v Svaz softwarové
ochrany v Ministerstvo kultury (n 19) para 49; Brompton Bicycle v
Chedech/Get2Get (n 144) para 27.
148 See Case C-145/10 Painer v Standard Verlags GmbH and others
ECLI:EU:C:2013:138, [2012] ECDR 6, paras 90-93.
149 Perhaps the only practical example would be the transcription of
music from one clef (key) to another (eg from the C-Alto-clef to the
G-clef), or a transposition which would be caught by the merger doc-
trine, because there is only one way to perform the transcription or trans-
position accurately, otherwise one changes or distorts the music.
150 See discussion by Stumpf (n 131) 89.
151 Cornish, Llewelyn and Aplin (n 20) 475-76.
152 Compare Stumpf (n 131) 57, 62-63, 66, 85.
153 On this version of ‘idea’, see Stumpf (n 131) 92-94.
154 See above under II.3.
155 Explanation of the contrast between form and content (‘Form und
Inhalt’) and idea and expression already briey in Ulmer (n 139) 122.
156 Ulmer (n 139) 119-25 and Ulmer’s résumé at 122: ‘This interpre-
tation [that the Anglo-Saxon idea-expression dichotomy provides] is in
conformity with the more recent assessment in German law.’ (In this way,
the old German distinction between external form and internal form also
becomes redundant). Ulrich Loewenheim, ‘§ 2 paras 76-78’ in Schricker
and Loewenheim (n 43) 146-47, Stumpf (n 131) 107-09.
157 The English House of Lords case Designers Guild Ltd. v Russell
Williams (Textiles) Ltd. [2000] 1 W.L.R. 2416, HL, at 2422-2423,
throws these categories together, and from a practical perspective this is
understandable.
158 Ulmer (n 139) 276, Stumpf (n 131) 138-41.
159 For example, Arnold Schoenberg (1949): ‘You can really contend
that I owe very, very much to Mozart; and if one studies, for instance
the way in which I write for string quartet, then one cannot deny that I
have learned this directly from Mozart. And I am proud of it!’, available
at Arnold Schoenberg Center, Vienna <https://www.schoenberg.at/index.
php/en/mozart-und-schoenberg-200607-sp-2047761446> accessed 14
September 2023.
160 Stumpf (n 131) 120.
161 Rahmatian, ‘The elements of music relevant for copyright protec-
tion’ (n 34) 114.
162 UK Francis Day & Hunter v Bron [1963] 1 Ch. 587, at 604: ‘To
take a single bar of music and reproduce that is never a breach of copy-
right because the part taken must be substantial.’
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The Musical Work in Copyright Law 31
work infringes that other work’s copyright. The problem
remains how one ascertains in conicting musical works
whether there is similarity and whether a substantial part
has been taken.
2. Ascertainment of infringement and the
hearing test
The way in which expressions in two different musical
works are compared and similarities are established is
through a hearing test. This, however, poses certain dif-
culties.163 The usual test in the US and other jurisdictions,
used without much reection in the courts, is the lay lis-
tener test:164
‘The test to be applied […] depends not upon exter-
nal criteria, but instead upon the response of the
ordinary reasonable person to the works. […].
“Analytic dissection” and expert testimony are not
called for; the gauge of substantial similarity is the
response of the ordinary lay hearer.’
Judges’ statements are similar in other decisions: ‘when
the two songs were played to us, it was immediately
apparent, to me at any rate, that the effect on the ear
was one of noticeable similarity’;165 ‘I listened to some
of the tapes produced in Court and I am in no doubt
about the signicance of the drum part to the whole of
the work’;166 ‘The link passage is, to my ear, an original
and cleverly worked adaptation of the song’s melodic
line’;167 ‘I accept that [the claimants’ and the defen-
dants’ musical phrases] involve a vocal chant of some
kind, I do not agree that the [claimants’] phrase is in a
low register: to my ear both the low and high harmo-
nies can be heard equally.’168 Or, especially if copyright
subsistence is at stake: whether there is ‘individual aes-
thetic expressiveness’ which gives the work the neces-
sary originality, that ‘shows itself also for the layman
in the eld of music in the fact that he grasps this mel-
ody on repeated hearing as known and assigns it to the
plaintiff’.169 The music (in that last case Stevie Wonder’s
Happy Birthday song) operates apparently as a kind of
signature tune here, as an indication of origin, similar to
a trade mark. However, in the reasoning of the courts,
the actual comparison of songs does not rely on the lay
listener only but frequently contains signicant musi-
cal expert analysis, particularly for eliciting what the
unprotectable musical building blocks or ‘ideas’ are,170
and potentially also where elements of the work are
not sufciently original and lack protection.171
At the EU level, the Pelham decision gives some indi-
rect indication about the listener test that the CJEU
seems to have in mind,172 at least in relation to sound
sampling.173 Pelham copied, that is, electronically sam-
pled, about two seconds of a rhythm sequence from the
song Metall auf Metall by the music group Kraftwerk
for his song. Following a reference from the German
Bundesgerichtshof (BGH), the CJEU decided that the
reproduction of even a very short sound sample of a pho-
nogram must be regarded as a reproduction ‘in part’ of
that phonogram within the meaning of Art. 2(c) of the
EU Information Society Directive174 and is therefore sub-
ject to the producer’s permission as the exclusive right
holder. If, however, the user uses a sound sample in a
modied form unrecognisable to the ear in a new work,
then this is not a ‘reproduction’ in the sense of Art. 2(c)
and no permission is needed. Freedom of the arts allows
an artistic expression in the form of a sample taken from
a phonogram and modied to such an extent that the
sample is unrecognisable to the ear in the new work as
a distinct artistic creation.175 The question is: unrecognis-
able to whose ear? The lay listener’s or the expert’s? The
Advocate General’s opinion does not refer to a listener
test at all.176 The CJEU does, only briey, and since there
is no further information, the test appears to be a lay lis-
tener test, in practice presumably exercised by the judges.
However, it can arguably not be inferred that expert lis-
teners are always ruled out.
Craig and Laroche conclude, having composed
music containing elements of other well-known musi-
cal pieces177 as an experiment for their critical study of
the lay listener test, that ‘Without sufcient appreciation
of the musical signicance of apparent similarities, the
fundamental distinction between independent creation
and unlawful copying cannot be satisfactorily drawn.
[…] [Music theory] is vital to upholding some of copy-
right’s most foundational norms. The lay listener test
circumvents music theory, thus bypassing critical steps
in the infringement inquiry’;178 and that ‘the recognition
of similarity is an acquired skill, not a stable binary yes/
163 Carys Craig and Guillaume Laroche, ‘Out of Tune: Why Copyright
Law Needs Music Lessons’ in Courtney Doagoo and others (eds),
Intellectual Property for the 21st Century. Interdisciplinary Approaches
(Irwin Law 2014) 43-71 (57-65).
164 Baxter v MCA, Inc. 812 F.2d 421, at 424 (9th Cir. 1987).
165 UK: Francis Day & Hunter v Bron [1963] 1 Ch. 587, at 608, per
Willmer LJ.
166 UK: Stuart v Barrett (n 81) 460, per Thomas Morison QC as deputy
High Court judge.
167 UK: Godfrey v Lees (n 100) at 328.
168 UK: Edward Ch. Sheeran and others v Mr Sami Chokri and others
(n 103) para 34.
169 Austrian Supreme Court (OGH) 12 March 1996, 4 Ob 09/96 –
Happy Birthday II.
170 US: Skidmore v Led Zeppelin (n 76) 1070-71, UK: Francis Day &
Hunter v Bron [1963] 1 Ch. 587, at 610, 620, UK: Redwood Music Ltd
v Chappell & Co Ltd. [1982] R.P.C. 109, at 119.
171 See eg US: Acuff-Rose Music, Inc. v Jostens, Inc. 155 F. 3d 140, at
144 (2d Cir. 1998). The decision whether there is copyright originality is
a question of law, but the question whether a (musical) element in ques-
tion is prevalent and commonplace (from which the legal qualication
of originality can be determined) is a factual consideration and can also
be put to experts.
172 Pelham and others v Ralf Hütter and another (n 56).
173 On sound sampling and other forms of borrowing in musical com-
position and the inuence of copyright law on artistic practice, see eg
Frédéric Döhl, Mashup in der Musik: Fremdreferenzielles Komponieren,
Sound Sampling und Urheberrecht (Transcript Verlag 2016) 13-16
(29-35).
174 Directive 2001/29/EC on the harmonisation of certain aspects of
copyright and related rights in the information society.
175 Pelham and others v Ralf Hütter and another (n 56) paras 29, 31,
36-37, 87, and para 72 in relation to whether a recognisable sample
could be a quotation from the earlier work.
176 Case C-476/17 Pelham and others v Ralf Hütter and another
ECLI:EU:C:2018:1002, Opinion of AG Szpunar, para 40.
177 The piece composed for experimental purposes contained Richard
Wagner, Wedding March, Britney Spears, ‘Oops! … I did again!’,
Beethoven, Fifth Symphony, Nirvana, ‘Smells Like Teen Spirit’, Craig and
Laroche (n 163) 61, 63.
178 ibid 60.
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32 Andreas Rahmatian
no response.’179 After an experiment testing lay listeners’
reactions to hearing allegedly infringing musical compo-
sitions, Lund concludes in relation to a similar method of
performance of two pieces that, although the manner of
performance has an effect on listener perception of simi-
larity, ‘it is not so determinative as to eliminate the effect
of actual structural musical similarities on listener percep-
tion’. An instruction of a jury in the experiment showed
limited success in attenuating bias in listener perception.
For Lund, the lay listener test is poorly suited to assessing
the ‘substantial similarity’ of musical compositions, as it
directs the lay listener too much towards the performance,
rather than towards the compositional elements.180
However, for composers such a lawyerly/scholarly
approach in court is usually rather articial; they want
to create an aural effect on listeners, irrespective of how
knowledgeable they or anybody may be about the aca-
demic theory of music behind it. One does not need a
music degree in order to compose, and ultimately music
itself is a material for the creative artist, no matter who
has created it. However, composers and musicians are
never lay listeners; they invariably know the craft of
music, whether academically or intuitively.
What should then be the determining approach? Is it
the sound of the music to the lay listener or is it the design
and technique (‘Compositionswissenschaft’, as Joseph
Haydn would have called it in the eighteenth century),181
and with them the musical work, to the expert musician
and musicologist who can appreciate how the piece has
been constructed and crafted (rhythm, harmony, etc.)?
In most cases, the design and technique determine and
inuence the sound. The so-called extrinsic similarity test
(similarities in the score and the musical techniques, also
following musicological expert analysis or ‘dissection’)
and then the intrinsic similarity test (similarities in the
lay listener’s experience) in US case law182 are supposed to
reveal the actual situation, but it is not so clear whether
that two-step test can be carried out with exactitude in
practical circumstances; the two steps may well coalesce.
Although the lay listener may not know what prompts
the sounds in their particular way, a different composition
technique would lead to different sound impressions and
sound patterns, also for lay people – at least if they have
any susceptibility to music at all. That can obviously be
problematic, not only because of a proverbial tone-deaf-
ness, but also because of an inability to concentrate on
acoustical similarities and differences in the hearing expe-
rience, particularly if one does not know the underlying
composition techniques responsible for these different
effects. The assessment result can then depend on the indi-
vidual judges (or, depending on the jurisdiction, jury) and
their sophistication as lay listeners and is insofar a risk for
the parties to the action. Particularly where different com-
position techniques nevertheless lead to a near-identical
hearing experience, at least for the unskilled lay listener,
some expert opinion by musicologists must be appropri-
ate.183 In special cases, where the musical work is some-
what different from the music according to a layperson’s
understanding, expert witnesses are inevitable.184
The decision is ultimately a normative, not a factual
one: what matters is more the normative musical work
than the music in it, although they often coincide. The
music is xed and represented (typically) by the score,
and this normative musical work, as a static representa-
tion of the eeting art of music, enables property rights
(copyright) to be attached to it.185 However, for copy-
right infringement, not the recording and preservation
of the music by the musical work but the music itself
matters, perhaps recreated from such a record or score.
Since the subject-matter of copyright protection is the
music, the sounds, not the score,186 one would think that
the underlying technique, even if different but leading
to the same aural impression, is not decisive, and the
court could nd infringement if the other requirements
are met. That may be acceptable where expert listeners
would be able to distinguish in their assessment of sim-
ilarity the sound experience from the technical craft for
its creation. But a lay listener cannot be expected to have
this sophistication. If an expert listener hears a difference
and a lay listener does not, what applies? How ‘good’ or
‘capable’ must a lay listener be to qualify as a standard
listener? Such a decision would be a normative one and
could theoretically follow a legal denition or test. The
situation appears vaguely similar to trade mark law: in
EU law, when likelihood of confusion between two trade
marks has to be ascertained, reference is made to the ‘rel-
evant public’. The test is that the relevant public must
be deemed to be composed of the average consumer,
reasonably well informed and reasonably observant
and circumspect.187 Outside the EU, the test is similar.188
However, these trade mark tests cannot be adopted for
copyright because their rationale is a quite different
one: there are no consumers to be addressed (and to be
shielded from deception), but a work of music is to be
179 ibid 64-65. See also Sara Baumgardner, ‘The ‘I Know It When I
Hear It’ Test: Decreasing Overdependence On Sheet Music in Substantial
Similarity Cases’ (2020) 56 Gonzaga Law Review 351-403 (390), identi-
fying the same problem but arriving at the opposite conclusion: decisive
should be the sound as it is heard by the lay listeners (jury), not the expert
opinion of trained musicians.
180 Jamie Lund, ‘An Empirical Examination of the Lay Listener Test in
Music Composition Copyright Infringement’ (2001) 11 Virginia Sports
and Entertainment Law Journal 137-77 (163, 173, 175). The validity and
reliability of the data gained from the empirical method applied in that
study cannot be examined here.
181 ‘I tell you before God, as an honest man, your son is the greatest
composer I know in person and name; he has taste and above that the
greatest compositional science (Compositionswissenschaft)’, Leopold
Mozart quoting Haydn in a letter to his daughter in 1785 about his son
WA Mozart, see Ludwig Finscher, Joseph Haydn und seine Zeit (2nd edn,
Laaber Verlag 2002) 49, 412 (own translation).
182 US: Arnstein v Porter 154 F. 2d 464, at 468 (2d Cir. 1946), at 468,
US: Sid Marty Krofft Tele. v Mcdonald’s Corp 562 F. 2d 1157, at 1164,
(9th Cir. 1977), US: Skidmore v Led Zeppelin (n 76) 1064 (9th Cir. 2020).
183 And is usually accepted by the courts, see US: Arnstein v Porter (n
182) at 468: ‘On this issue, analysis (“dissection”) is relevant, and the
testimony of experts may be received to aid the trier of the facts.’ See also
US: Skidmore v Led Zeppelin (n 76) 1059 (9th Cir. 2020). In the UK, see
eg the recent case Edward Ch. Sheeran and others v Mr Sami Chokri and
others (n 103) para 31.
184 As was the case in UK: Sawkins v Hyperion Records (n 119) paras
14, 23, 30 (rst instance decision, High Court), where expert witnesses
explained baroque composition methods and notation techniques which
were restored in the performing editions.
185 Above under II.
186 UK: Sawkins v Hyperion Records Ltd. (n 119) para 53.
187 Case C-104/01 Libertel Groep BV v Benelux-Merkenbureau
ECLI:EU:C:2003:244, para 46.
188 eg in the US, Interpace Corp. v Lapp, Inc. 721 F. 2d 460 (3rd Cir.
1983), A&H Sportswear, Inc. v Victoria’s Secret Stores, Inc. 237 F.3d 198
(3rd Cir. 2000).
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The Musical Work in Copyright Law 33
protected because of the more than trivial and common-
place efforts of its maker. In this regard, trade mark law
centres on the consumer, copyright on the author. Market
behaviour is not relevant in copyright law, nor is – to a
certain extent – the effect on those being confronted with
the work of music: creation is more relevant than percep-
tion. Furthermore, copyright, unlike trade mark law, has
no priority rule. Therefore a double-creation of identical
tunes is possible: if the composer of tune 2, who may be
accused of having taken over tune 1, can show that he/
she has had no access to tune 1 at all and tune 2 was an
independent and original creation which just happens to
resemble tune 1, both composers have copyright.189 That
also applies if both composers have used the same com-
position techniques.190
A denition for the qualities of a standard listener in
musical copyright infringement cases can probably not be
given (something like, for example, the ‘person skilled in
the art’ for ascertaining inventive step or non-obviousness
in patent law).191 However, in less straightforward cases,
an entirely unsophisticated lay listener may not be suf-
cient, and some musicological expertise should be (and
usually will be) admitted by the courts, and frequently
one of the parties of the trial will request this. Where
the aural effect of two works is the same for the usual
lay listener, but the musical techniques are different, as
ascertained by music specialists, that would rather count
against infringement, particularly if the expert listener is
able to detect relevant aural differences.
V. Conclusion
The term ‘music’ is not dened in the copyright systems,
but follows a general understanding (or dictionary de-
nition) of music. Music is fashioned time, that is, an
intrinsically time-bound process, and as such not directly
suitable for property protection, which would presuppose
a static reference point, an object of property, such as a
physical thing, or for example for copyright protection
for artistic works, a physical object (a painted canvas, a
sculpture) that can serve not only as tangible moveable
property but also as a vehicle for signifying the copyright
in it. This is achieved by the ‘musical work’, a normative
term which is not identical with music, although it often
coincides with it in practice. The musical work provides
the static features to which the property right of copyright
can attach, against the actual nature of music as a eeting
art that exists only in its performance without the need
of xation. The musical work xes the music through a
score, and that score, although not being the music, serves
as a representative of the music for the law because the
music can be recreated from it. The content of the musi-
cal work is often merely the score, and with it indirectly
the music which it denotes. However, the musical work
can go beyond the music, and encompasses something
musicians would not consider as music, for example per-
forming editions of works of music, whereby copyright
protection covers the performing edition only, not the
music in it. In some jurisdictions, the musical work in
copyright also comprises lyrics or action and therefore
also exceeds the common understanding of music by a
(Western) musician.
Musical copyright infringement cases reveal that
the musical work in the form of the xation as a
score itself is not the subject-matter of protection, but
only the music, the sounds, that it denotes. However,
the hearing tests and the underlying assessment for
infringement, either by lay listeners or by experts, of
the unprotectable and protectable elements of music
(‘ideas’ and ‘expressions’) and their inuence on the
listening experience, as well as the ascertainment of
the (dis)similarities of melodies, are fraught with dif-
culties. Furthermore, since music is a living art, per-
formance (and improvisation), conceptually separated
from composition by copyright law, can be a contribu-
tion to the composition of the music and therefore a
shaping element in the making of the music and, with
it, the musical work. In such situations, performers are
also authors and can become joint authors of the musi-
cal work, together with the main composer(s).
The concepts of copyright have been developed for
more static objects of protection, such as texts and works
of visual art. Trying to restrain music, this highly abstract,
ephemeral, ungovernable and unpredictable art form,
by copyright-property rules is like the futile attempt to
hold one’s own cat against its will. But that is part of the
beauty of music.
189 Compare eg US: Arnstein v Porter (n 182) at 468. ‘If evidence of
access is absent, the similarities must be so striking as to preclude the
possibility that plaintiff and defendant independently arrived at the same
result.’ In the commercial pop-music world of (often) relatively simple
tunes, even identity need not necessarily preclude genuinely independent
creation. See also Skidmore v Led Zeppelin (n 76) 1064 (9th Cir. 2020).
The same rule applies in principle in author’s rights countries as well, see
for Germany, Rehbinder (n 27) 29, for Austria, Walter (n 28) 75.
190 See, for example, the discussion in the UK: Edward Ch. Sheeran and
others v Mr Sami Chokri and others (n 103) paras 156-60.
191 Compare European Patent Convention 1973 (2000), art 54; US
Patent Act 1952, 35 U.S.C. § 103.
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